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Longmont granted change of venue in fracking ban lawsuit

Weld County judge rules COGA case will be heard in Boulder County

By Tony KindelspireLongmont Times-Call

Posted:
03/11/2013 04:43:26 PM MDT

Updated:
03/11/2013 09:47:52 PM MDT

An ENSIGN drilling rig is seen last week off Weld County Road 3, east of Longmont. A Weld County judge has ruled that the Colorado Oil & Gas Association's lawsuit against the city over the resident-banned fracking ban will be heard in Boulder County court. (Matthew Jonas/Times-Call)

Longmont's request for a change of venue in the fracking ban lawsuit filed against the city by the Colorado Oil & Gas Association has been granted. The case will now be heard in Boulder County.

COGA filed the lawsuit in December in Weld County after 60 percent of Longmont voters passed Ballot Measure 300 on Election Day. The measure banned hydraulic fracturing, or fracking, and the storage and disposal of fracking waste within the city limits.

Judge Daniel S. Maus ruled in favor of Longmont's request on Friday and the ruling became official Monday morning.

COGA had argued Weld County was the appropriate venue for the case because most of the affected lands were in the Weld County portion of Longmont. At best, COGA's lawyers said, Longmont's request for a venue change had only proven that Boulder County would also be an appropriate venue. Choosing between two proper venues, COGA argued, should be the choice of the plaintiff, not the defendant.

In a brief filed in January, Longmont city attorney Eugene Mei and special counsel Phil Barber noted that COGA had not objected to a separate lawsuit the Colorado Oil and Gas Conservation Commission had filed against the city of Longmont. That lawsuit, which COGA attached itself to, was filed over the Longmont City Council's passage last year of stricter regulations regarding fracking practices. That lawsuit was filed in Boulder County.

"There is no venue-relevant distinction between the actions of the Longmont City Council giving rise to the present case (the fracking ban lawsuit) and to the Boulder County case," Longmont's attorneys wrote. "COGA is therefore bound by its admission in the Boulder County case that actions taken by the Longmont City Council at the Longmont Civic Center occur in Boulder County. ... (V)enue is proper only in Boulder County.

Mei declined to comment on the judge's decision Monday, citing pending litigation. The lead attorney on the case for COGA, Kenneth Wonstolen, also declined to comment.

Longmont was the first city to pass an outright ban on fracking, in which a mixture of water, sand and chemicals is pumped under high pressure thousands of feet below the Earth's surface to free oil and gas deposits, and the City Council pledged to defend the ban in support of voters' wishes. The Fort Collins City Council recently passed a similar ban in that city.

COGA claimed in its lawsuit that Ballot Measure 300 was essentially a ban on drilling, which would be an unconstitutional taking of private property without compensation.

Storage tanks of a fracking well are shown in this file photo. A Weld County judge has ruled in favor of Longmont for a change of venue for the lawsuit brought by the Colorado Oil & Gas Association. (Matthew Jonas/Times-Call )

The city's attorneys have argued that "takings" should not apply in this case.

Also on Monday, a coalition of four environmental groups filed a motion to become co-defendants in the COGA lawsuit.

Our Health, Our Future, Our Longmont; Earthworks; Sierra Club; and Food & Water Watch said in a statement they have taken the action "to affirm the rights of citizens and communities to guarantee a safe and healthy environment for themselves and future generations."

Kaye Fissinger, managing member of Our Longmont, said it made sense for the groups to come together as a coalition, rather than file individually. Becoming a "full party" in the lawsuit will allow the groups and their attorney complete access to all of the filings and arguments, she said.

Attorney Michael Harris, director of the University of Denver Sturm College of Law's Environmental Law Clinic, will be representing the four groups.

"I think what's most important here is, the amendment was passed by the people," Harris said Monday. "And the people want to be part of the defense for that reason."

Harris said the groups he represents want to fight the lawsuit to protect the city's air, water and environment, while the city has its own reasons to defend itself in the lawsuit -- specifically, to protect its sovereignty.

"(The city's) arguments are not going to be based on their individual rights to protect their land and their health," he said.

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